Episode 121:
Hello and Welcome to the Part3 with me podcast.
The show that helps part 3 students jump-start into their careers as qualified architects and also provides refresher episodes for practising architects. I am your host Maria Skoutari and this week I will be talking about the newly released RIBA Building Regulations Principal Designer Professional Services Contract. Today’s episode meets PC1 and 2 of the Part 3 Criteria.
Make sure to stay until the end of todays scenarion.
Towards the end of June, the RIBA released the highly anticipated Building Regulations Principal Professional Services Contract 2024 which sets out the services to be provided in accordance with the new Building Safety Act Regime.
It is a standalone contract and will be suitable for the appointment of a Principal Designer under Part 2A of the Building Regulations and for commissions procured through any form of procurement for commercial projects of any value including design and build pre-novation, in which the building works will be carried out using bespoke or standard forms of building contract.
The key item to highlight here is that this appointment form is suitable for use on commercial projects, it is unclear if another appointment form will be provided by the RIBA for domestic projects. Currently, the RIBA has stated that this new appointment form is not suitable for the appointment of a Principal Designer on non-commercial work undertaken for a consumer client, such as work done to a client's home. Domestic projects are subject to the Consumer Rights Act 2015 and in such cases, the RIBA recommends the use of the RIBA Domestic Professional Services Contract, which includes the provision for the Architect or Consultant to undertake Principal Designer duties as set out in the Building Regulations. It is also not suitable for the appointment of a CDM Principal Designer. In such cases, the RIBA recommends that the CDM Principal Designer is appointed under the separate RIBA CDM Principal Designer Professional Services Contract.
Essentially, the new RIBA Building Regulations Principal Designer Professional Services Contract follows a similar format to the RIBA CDM Regulations Principal Designer Professional Services Contract. However, as mentioned each respective contract form should only be used for the respective roles that they cover as the CDM contract cannot be used for the Building Regulations Principal Designer role and vice versa. Hence the reason for them being provided as separate professional services contracts.
So reverting back to have a closer look through the new RIBA Building Regulations Principal Designer Professional Services Contract:
The services stated within the RIBA Building Regulations Principal Designer Professional Services Contract align with the Building Regulations Principal Designer regulatory duties. The Schedule of Services has two parts: the services under Part 2A of the Building Regulations 2010 and those under the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023(HRB Procedures Regulations).
The person filling out the contract is asked at the beginning of the Schedule of Services to state the RIBA work stages for which the architect/consultant will be acting as Building Regulations Principal Designer, and to select the services to be included depending on whether the project includes a High-Risk Building. A key item to highlight is that the Contract form also states that the services offered are subject to reasonable skill, care and diligence and when coordinating information from others the Building Regulations Principal Designer shall not be responsible for the content of the information received.
It also states that the client, Building Regulations Principal Designer and the other designers should continue to periodically review whether the project will include High-Risk Building work if built in accordance with the design.
Moving on to the Contract Conditions, they generally follow those previously adopted in the RIBA CDM Regulations Principal Designer Professional Services Contract with new clauses added to address the new regulations.
The contract recognises that the client must carry out its duties under Part 2A of the Building Regulations and the High-Risk Building Procedures Regulations, where applicable to the project, to enable the Building Regulations Principal Designer to perform its services. The contract also acknowledges that the Building Regulations Principal Designers working on High-Risk Buildings will need continuing access to the Golden Thread Information.
Under the new regime, the Building Regulations Principal Designer is required to provide a written statement that it has fulfilled its duties under Part 2A of the Building Regulations. The contract includes a provision that the Building Regulations Principal Designer will not warrant to provide to any statement of compliance beyond those expressly required by law which is quite a valuable clause to have in place from a liability perspective.
Additionally, competency underpins the new building safety regime introduced by the Building Safety Act. Designers should not take on any design work for which they are not competent. Therefore, those intending to act as the Building Regulations Principal Designer should be aware of the competency requirements under Building Regulations, and that the competencies required may be project specific. They should not accept requests to act as Building Regulations Principal Designer if they do not satisfy the competency requirements set out in regulations 11F and 11G under Part 2A of the Building Regulations. In the new contract, the Building Regulations Principal Designer should assess at the outset whether it is competent to act and inform the client if it ceases to be competent over the course of the project.
In terms of how other RIBA standard forms of professional services contracts will make allowance for the new role:
Amendments to these will be issued later this summer and will include similar new provisions. The RIBA Standard Professional Services Contract will also be updated to include services that now need to be undertaken to comply with ‘designer duties’ under the Building Regulations, and separately under the High-Risk Building Procedures Regulation.
As mentioned at the start, key item to remember is that architects should note that the RIBA Building Regulations Principal Designer Professional Services Contract is not suitable for the appointment of a Building Regulations Principal Designer by a ‘domestic client’ under the Building Regulations and/or a ‘consumer client’ acting outside of their business as defined by the Consumer Rights Act 2015. The forthcoming amendments to RIBA Domestic Professional Services Contract will include an option for the architect to act as Building Regulations Principal Designer as well as the CDM Principal Designer.
The existing RIBA CDM Principal Designer Professional Services Contract is also being updated to remove confusion over its single ‘Principal Designer’ terminology now that there are two distinct Principal Designer roles.
I should also mention that the RIBA Building Regulations Principal Designer Professional Services Contract can of course be used by any individual or organisation that decides to undertake this role, meaning not just architects can use it but whoever is to carry out the role of Building Regulations Principal Designer. The regulations do not stipulate who should undertake the role of Principal Designer – the focus is on ‘competence’ so that duties are carried out effectively. As the Principal Designer is in overall control of design work, the role lends itself to being carried out by the Lead Designer but it is not essential or stipulated as such. Any individual or organisation to be appointed under CDM and the Building Regulations must be competent for these roles for the specific project. In terms of whether a Principal Designer under CDM regulations can also fulfil the Principal Designer role under Building Regulations, it is again entirely a matter of competence. Historically, the professionals that formerly carried out the CDM Coordinator role prior to the CDM Regulations 2015 often came to the role from a health and safety or project management background. Therefore, it is potentially unlikely that many of the existing CDM Advisors will have the regulatory skills, knowledge, experience or behaviours to meet the provisions under the new regime, unless of course if they have undertaken the necessary training and upskilling to be able to do so like many have already undertaken.
Some of the larger developers (or contractors) for example have said they intend to make the Principal Contractor also the Principal Designer. This is not a problem under regulations, which allow for one organisation to fulfil both duties as long as the respective competence requirements are met. This is a model also likely to be applied to design and build projects, but will be up to the client to define how they intend to appoint the respective duties.
To sum up what I discussed today:
- The RIBA has published the new Building Regulations Principal Designer Professional Services Contract 2024 for the appointment of a Building Regulations Principal Designer
- It is suitable for the appointment of a Principal Designer under Part 2A of the Building Regulations and for commissions procured through any form of procurement for commercial projects of any value, including design and build pre-novation. And it can be used by any individual or organisation that decides to undertake the role.
- The RIBA Building Regulations Principal Designer Professional Services Contract is not suitable for the appointment of a Principal Designer on non-commercial work undertaken for a consumer client
- The new RIBA Building Regulations Principal Designer Professional Services Contract follows a similar format to the RIBA CDM Regulations Principal Designer Professional Services Contract, however, each respective contract form should only be used for the respective roles that they cover
- Amendments to the existing RIBA Professional Services Contracts will be issued later this summer and will include similar new provisions to ensure the new role is identified and covered within all RIBA contracts
